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DEPARTMENT OF THE TREASURY U.S. CUSTOMS SERVICE DISTRICT OFFICE SAN FRANCISCO, CALIFORNIA and NATIONAL TREASURY EMPLOYEES UNION Case No. 90 FSIP 101

DEPARTMENT OF THE TREASURY U.S. CUSTOMS SERVICE DISTRICT OFFICE SAN FRANCISCO, CALIFORNIA and NATIONAL TREASURY EMPLOYEES UNION

United States of America

BEFORE THE FEDERAL SERVICE IMPASSES PANEL

In the Matter of

DEPARTMENT OF THE TREASURY

U.S. CUSTOMS SERVICE

DISTRICT OFFICE

SAN FRANCISCO, CALIFORNIA

and

NATIONAL TREASURY EMPLOYEES UNION

Case No. 90 FSIP 101

DECISION AND ORDER

The National Treasury Employees Union (Union) filed a request
for assistance with the Federal Service Impasses Panel (Panel) to consider a
negotiation impasse under section 7119 of the Federal Service Labor-Management
Relations Statute (Statute) between it and the Department of the Treasury, U.S.
Customs Service, District Office, San Francisco, California (Employer).

The Panel determined that the case should be resolved on the
basis of written submissions from the parties. After considering the entire
record, the Panel would issue a Decision and Order in which it selected one of
the parties' final offers to resolve the impasse. Written submissions were made
pursuant to these procedures and the Panel has considered the entire record.

BACKGROUND

The Employer's mission is to ensure compliance with U.S.
Customs laws through the clearance of overseas passengers and cargo. There are
approximately 300 bargaining-unit employees in the San Francisco District, the
majority of whom hold positions as uniformed customs inspectors and import
specialists. They are part of a nationwide consolidated unit of 12,000 employees
whose master agreement expires in August 1990.

ISSUE AT IMPASSE

The issue at impasse in this case arose during local
negotiations over the implementation of a 5-4-9 alternative work schedule (AWS)
which would affect approximately 90 import specialists and entry-branch
personnel. The parties primarily disagree over the procedure to be used for
determining the off days of participating employees.

1.The Union's Position

The Union's final offer is as follows:

When more employees than can be accommodated choose the same
non-workday and/or 8-hour day, and/or working schedule, employees are encouraged
to first resolve such conflicts informally, amongst themselves. However, if
employees are not able to resolve such conflicts informally, the request of the employee who has the
most seniority shall be granted. Seniority shall be determined based upon
service computation date as used by the Agency for retirement purposes. In the
event employees have the same service computation date, the tie shall be broken
by coin toss.

By encouraging employees to work out scheduling difficulties informally among themselves, the need for an alternative
mechanism of selection may be avoided altogether. If conflicts remain, however,
a seniority procedure is inherently fairer than the procedure proposed by
management because it would eliminate perceptions of favoritism. A survey of
participating employees and a petition signed by most of the higher graded
employees indicate that its proposal enjoys overwhelming support. The use of
seniority also would acknowledge the contribution of lower graded employees,
thus boosting morale, enhancing productivity, and fostering cooperation. Similar
seniority-based procedures have been implemented in two other West Coast
District offices with no adverse consequences.

Adoption of the Employer's proposal, on the other hand, would
result in a decline in morale and productivity by
unnecessarily creating antagonism in the workplace. Moreover, there is no
validity to the Employer's allegation that granting preference by seniority would have an adverse impact on the operations of
the Agency, or undermine the authority of those higher graded employees who
function as team leaders. In this regard, the parties already have agreed to wording which provides ample protection for
the Agency in the unlikely event that applying the Union's proposal would result
in inadequate staffing. Finally, there is so little merit in the Employer's
position that the Union suspects it has brought the matter to the Panel merely
to delay the implementation of the Parties AWS program.

When more employees than can be accommodated within any unit
eligible for AWS choose the same non-workday and/or 8-hour day, employee
requests will be granted in order first by higher grade; however, if same graded employees are requesting, then by
length of service based on service computation date for retirement
purposes. This method of resolution shall be utilized in all
organizational areas where AWS is available.

The Employer "applauds" the change in the Union's
position that disagreements between employees over off days should be resolved
informally, because it conforms with what management has advocated "from
the beginning. If conflicts cannot be resolved in this manner, however, its
proposal should be adopted primarily because it would ensure that the higher
graded employees who occupy team-leader positions "retain the authority to
judge when office coverage might be impaired by conflict over an AWS day
off." In this regard, those in lead positions assign work and priorities
within a team or sub-unit, and are in the best position to know when they are
expendable from the office. Hence, "it would [have an] impact on the
Agency's functioning, the leader's morale and undermine the leader's authority
to permit the lower graded employee to mandate his/her AWS preference." Its
proposal also would serve as a "small perquisite" for those who have
been selected through the merit system for leadership roles.

While its proposal "is founded on operational realities and the
job-related performance evaluations of the higher graded employee, the Union's
statement of position "is an emotional appeal relying on hearsay,
self-serving, unfounded opinion declarations and based solely on speculation.
Moreover, the Union's survey results should be discarded because only about half
of the potentially affected employees responded. Finally, the Employer's
position was clearly enunciated in October 1989, and any delay in resolving this
impasse was occasioned by the Union, so its attempt to cast aspersions on the
Agency's motivations is without merit.

CONCLUSIONS

Having considered the evidence and arguments in this case, we
conclude that the dispute should be resolved on the basis of the Union's final
offer. Preliminarily, we support the view of both parties that those employees
who would be affected by the AWS program should make every effort to resolve
informally whatever conflicts may arise in the selection of off days. With
respect to that part of the dispute over which the parties disagree, however, we
believe that the adoption of a seniority-based procedure for resolving any
conflicts that remain would be fairer to the interests of all employees than the
Employer's proposal, and should enhance cooperation in the workplace. In this
regard, there appears to be broad support for the Union's proposal among the
employees who would participate in the program, including team leaders.

While the interests of employees must be balanced against
bona fide operational needs, we are persuaded that the Employer's concern that
the adoption of a seniority-based procedure would prevent effective coverage
from being maintained is unwarranted. In this regard, under the Statute
management is entitled to ensure that its mission requirements are met. In
addition, the Federal Employees Flexible and Compressed Work Schedules Act of
1982 provides for the termination of AWS programs which cause an adverse agency
impact. Finally, the record indicates that the parties have already agreed,
among other things, that an employee's request to participate in the program
"shall be granted as long as the approval would not disrupt the office in
carrying out its functions or impair the Employer's right to determine the type
and amount of work being performed." We find that these provisions
adequately protect the Employer's mission requirements and, accordingly, shall
order the adoption of the Union's final offer.

ORDER

Pursuant to the authority vested in it by section 7119 of the
Federal Service Labor-Management Relations Statute and because of the failure of
the parties to resolve their dispute during the course of proceedings instituted
pursuant to section 2471.6(a) (2) of the Panel's regulations, the Federal
Service Impasses Panel under section 2471.11(a) of its regulations hereby orders
the following:

The parties shall adopt the Union's final offer.

By direction of the Panel.

Linda A. Lafferty

Executive Director

June 26, 1990

Washington, D.C.

1. The Employer submitted a modified final offer during the
rebuttal phase of the written-submissions procedure. In our view, such
modifications are inconsistent with the procedure adopted for the instant
final-offer selection, and the Panel has proceeded on the basis of the final
offer presented in the Employer's initial submission.